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New ABA Ethics Rule Underscores What EDD Lawyers Should Already Know: There’s No Hiding from Technology

The legal profession underwent a sea change last week, but few lawyers even knew about it. In a historic but little-heralded move, the American Bar Association said that lawyers must be competent not only in the law and its practice, but also in technology.

The ABA’s House of Delegates voted to amend the comment to its Model Rule of Professional Conduct governing lawyer competence to make clear that a lawyer’s skill set must include technology.

The change was to the comment that follows the rule, which provides interpretative guidance as to the rule’s application and meaning. The revised comment adds the clause shown in italics here:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

The ABA Model Rules are not binding on lawyers but serve as models for the ethics rules in most states. Only time will tell whether state ethics regulators will adopt this change, but I predict most will.

The change regarding competence was one of several amendments to the model rules approved at the annual meeting. The changes resulted from the work of the ABA Commission on Ethics 20/20, which spent three years reviewing legal ethics rules in light of advances in legal technology and the increasing globalization of the legal profession.

Too Little, Too Late?

Though the commission used the phrase, “[b]ecause of the sometimes bewildering pace of technological change,” the transition to widespread use of digital technology has been in effect since 1985, more than 25 years ago. This is hardly a “bewildering” pace of change, unless you have stayed in a cave and remained a Luddite. Now more than ever is the time to commit to understanding digital change and ensure that you can competently handle your client’s needs.

It’s hard to argue with their premise. Lawyers have been using PCs since the late 1970s and the Internet for at least two decades. Still, the pace of technological change has accelerated in recent years, driven by our increasingly digital culture and an unprecedented degree of digital mobility.

And, even in the face of so much change, Luddites remain. Just last week, a lawyer told me that he refuses to use email in his law practice and he has no idea what a blog is. It’s one thing to draw a line in the sand, but it’s something else altogether to bury your head in it.

In E-Discovery, Luddites Need Not Apply

Interestingly, the 20/20 Commission takes the position that this duty of technological competence is nothing new. In the commission’s report to the ABA House of Delegates, it says:

Comment [6] already encompasses an obligation to remain aware of changes in technology that affect law practice, but the Commission concluded that making this explicit, by addition of the phrase “including the benefits and risks associated with relevant technology,” would offer greater clarity in this area and emphasize the importance of technology to modern law practice. The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer’s general ethical duty to remain competent.

That assertion may come as a surprise to many lawyers. But for lawyers who are engaged in electronic discovery, the need for them to be competent in technology should be obvious. It is impossible to competently (let alone zealously) represent a client in a matter involving electronically stored information without a better-than-average familiarity with technology. You cannot be both a Luddite and an advocate in e-discovery — at least not for long.

In fact, some argue that the 2006 e-discovery amendments to the Federal Rules of Civil Procedure already imposed on lawyers who handle e-discovery a duty of technological competence. A 2008 article by the legal ethics counsel for the District of Columbia Bar, R U Competent?, made this point, citing a 2008 report by the ABA Center for Continuing Legal Education that concluded that the FRCP changes required lawyers to understand their clients’ IT systems, know how to identify ESI, and have knowledge regarding digital file formats, sources of electronic data, and how computers operate.

Note that I said that the need for technological competence in e-discovery should be obvious. Regrettably, it isn’t always so. Arkfeld and Loquvam accurately sum up the true state of affairs:

Let’s face it — lawyers historically have ignored (and still do) the technological issues affecting client communications, discovery and production of electronically stored information, and other digital issues in their practice. We see it daily in sanctions handed down by the court in e-discovery cases — for confidentiality breaches of clients’ electronic information, or chastizing lawyers who fail to use litigation search technologies that reduce costs and provide greater access to justice.

And let’s also face the fact that his stuff isn’t easy. No less an authority on e-discovery than U.S. Magistrate Judge John M. Facciola has described the complexity of just one aspect of e-discovery — search — as taking legal professionals into an area “where angels fear to tread.” Similarly, Arkfeld and Loquvam point out that understanding how ESI is created, stored and retrieved requires a lawyer to understand more esoteric concepts such as deleted information, unallocated space, active files, fragmentation, media storage, metadata, audit trails, encryption and a host of others.

Fortunately, the ABA rule does not require that we all run out and enroll in advanced courses at MIT. We can understand the “benefits and risks” of technology without understanding its most-intricate inner workings. I have long believed that a key to technological competence is knowing what you don’t know. Lawyers don’t have to be IT professionals or engineers — but they need to know when they need one.

Of course, even knowing what you don’t know requires a higher level of understanding about technology than many lawyers have today. That is why this rule amendment from the ABA is welcome, if overdue. While I can’t argue with those who say this is “too little, too late,” I prefer to view it as “better late than never.” Maybe this official pronouncement from the ABA will force a few lawyers to pull their heads out of the sand.

About Bob Ambrogi

A lawyer and veteran legal journalist, Bob advises Catalyst on strategic communications and marketing matters. He is also a practicing lawyer in Massachusetts and is the former editor-in-chief of The National Law Journal, Lawyers USA and Massachusetts Lawyers Weekly. A fellow of the College of Law Practice Management, he also writes the blog LawSites.

For serious publications like this one not that often I guess. For others, probably every day. For what it’s worth, I like the top photo better. If you’re going to bury your head in the sand, you should wear a dark suit to better stand out and make your statement. The guy on the bottom is wearing a sand-colored suit. You could practically trip over him.

You really can’t overuse these photos when discussing this issue. Legal practice is build on (1) adherence to precedent; (2) observance of what the community believes to be reasonable; and (3) single-minded avoidance of risk. When considering technology, that combination can definitely lead lawyers to think, “as long as I keep doing what most of my neighbors did yesterday, I won’t get into trouble tomorrow.”

I would have dropped pics like these at least two more times…maybe subtitled each time with some wordy lawyer-speak, like, “For avoidance of doubt…” or “By way of further illustration…”

Great post.
luke

PS – Neil…C’mon…a dark suit in a desert? The guy wants to hide from the world, not leave it permanently.

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